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2012 DIGILAW 223 (CHH)

NIWAS DAS v. STATE OF C. G.

2012-08-31

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 14.8.2007 passed by Special Judge, Kanker, in Special Case No. 2/2006 convicting the accused/appellant No.1 under Section 20(b)(ii) Band accused/appellants 2 and 3 u/s 20(b)(ii) C of the NDPS Act and sentencing accused/appellant No.1 to undergo rigorous imprisonment for 7 years with fine of Rs. 50,000 whereas accused/appellants No.2 and 3 rigorous imprisonment for 10 years with fine of Rs. 1,00,000, plus default stipulations. 2. Facts of the case in brief are that on 24.5.2006 a telephonic information was received by P.C. Shrivastava (PW-3) that in a bus belonging to Payal Travels coming from Jagdalpur bearing registration No. CG-07-E1600 accused/appellants were carrying contraband and going to Raipur. This information was reduced to writing in Rojnamcha Sanha 1699, information was sent to superior officer and the police party proceeded to the spot - Kulgaon Turning, Kanker NH 47. Physical verification of weighment instruments was done vide Ex. P-2 and the police party was waiting for the bus. After sometime when the bus came, it was stopped, information was given to the driver and on query being made from the accused/appellants they disclosed their names saying that they were residents of Malkangiri district (Orissa), they were informed of their rights of search before gazetted officer vide Ex. P-19. Consent was given by the accused persons and the police party gave its own search vide Ex. P-22 to P-24, ganja was found in three plastic bags, weighment was done in which 19.950 grams of ganja was seized from appellant No.1 - Niwas Das vide Ex. P-14, 20.550 grams from accused/appellant No.2 Naresh Das vide Ex. P-16 and 20 Kg from accused/appellant No.3 Nimai Das vide Ex. P-15. Seized articles were found to be Ganja after smelling it and Panchnama was prepared vide Ex. P-29 to P-31. Physical verification of weighing instruments was done vide Ex. P-32 and P-33, weighment Panchnama was prepared vide Ex. P-34 to P-36. Samples were drawn vide Ex. P-37 to P-39. Seal panchnama was made, FIR Ex. P-7 was recorded and accused/appellants were arrested. Entire information was forwarded to SDO (P) vide Ex. P-17. On 25.5.2006 seal samples were sent for examination to FSL Raipur vide Ex. P-43 and acknowledgement to this effect is Ex. P-44. FSL report Ex. P-46 was received on 11.7.2006 and samples were found positive. Seal panchnama was made, FIR Ex. P-7 was recorded and accused/appellants were arrested. Entire information was forwarded to SDO (P) vide Ex. P-17. On 25.5.2006 seal samples were sent for examination to FSL Raipur vide Ex. P-43 and acknowledgement to this effect is Ex. P-44. FSL report Ex. P-46 was received on 11.7.2006 and samples were found positive. After investigation, charge sheet was filed on 31.7.2006 u/s 20-b of the Act 3. In support of its case, prosecution has examined 05 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellants submits that the contraband was not seized from exclusive conscious possession of the accused/appellants and it was seized from inside the bus and as number of passengers were travelling in the bus, it cannot be said that it belonged to the accused/appellants. He submits that compliance of Sections 42, 55 and 57 of the Act has not been made and the seized articles were not produced before the trial Court. Seizure witnesses have not supported the case of the prosecution and Malkhana Mohorir has not been examined. Lastly, he submits that the appellants are in jail since 24.5.2006, their sentence may be reduced to the period already undergone. 6. State counsel however supports the judgment impugned and submits, that the contraband was seized from exclusive possession of the accused/appellants. He submits that section 42 of the Act is not applicable because on secrete information police party had proceeded to the spot and made recovery of contraband from a public bus. He submits that in the case in hand, Section 43 of the Act is 'applicable and not Section 42 as argued by the counsel for' the appellants. Counsel for the respondent/State submits that even otherwise present is not a case of total non-compliance of Section 42 of the Act and vide Ex. P-1 secrete information was reduced to writing vide Ex. P-4 it was forwarded to the superior officer by special messenger and Ex. P-5 is the compliance report. He further submits that vide Ex. Counsel for the respondent/State submits that even otherwise present is not a case of total non-compliance of Section 42 of the Act and vide Ex. P-1 secrete information was reduced to writing vide Ex. P-4 it was forwarded to the superior officer by special messenger and Ex. P-5 is the compliance report. He further submits that vide Ex. P-17 reader to SDO (P) has given the receipt confirming the fact that information sent was received in the office of SDO (P) on the same day. He submits that in the search memo of bus Ex. P-18 it has been categorically mentioned that the contraband was recovered from the open space opposite the vacant space of the rear seat According to the State counsel, from the recovery memo Ex. P-26, P-27 and P-28 and seizure memo Ex. P-14, P-15 and P-16 it is apparent that contraband was seized from the conscious possession of the accused/appellants and once the prosecution has proved the conscious possession, it is for the accused/appellants to rebut the same and show that same was not seized from the conscious possession but in the present case no such evidence has been adduced. According to the State counsel, in the case in hand, secrete information was very specific where even the exact location of the seat occupied by the accused/appellants was given and thus even it has not been mentioned as to from which place the contraband was seized, considering the entire evidence to this effect, it can be said that it is the accused/appellants who were in conscious possession of the same. In support of his submissions, State counsel relied upon the decisions of the Supreme Court in the matter of Madan Lal and another v. State of H.P., (2003) 7 SCC 465, in the matter of Dharampal Singh Vs. State of Punjab, (2010) 9 SCC 608 in the matter of State of Haryana Vs. Jarnail Singh and others, AIR 2004 SC 2491 ; and in the matter of Union of India Vs. Major Singh and others, (2006) 9 SCC 170 . Further relying on the decision of the Supreme Court in the matter of State of Punjab Vs. Nirmal Singh, (2009) 12 SCC 205 , State counsel submits that statement of investigating officer alone is sufficient to convict the accused/appellants. 7. Heard counsel for the parties and perused the material available on record. 8. Further relying on the decision of the Supreme Court in the matter of State of Punjab Vs. Nirmal Singh, (2009) 12 SCC 205 , State counsel submits that statement of investigating officer alone is sufficient to convict the accused/appellants. 7. Heard counsel for the parties and perused the material available on record. 8. P.C. Shrivastava (PW-3) - the Investigating Officer has stated in his evidence that on 24.5.2006 a telephonic secrete information was received by him that on the second last seat of right side of bus No. CG 07 F-1600 of Payal Transport which was coming from Jagdalpur, accused/appellants namely Niwas Das Bengali, Naresh Das Bengali and Nimai Das Bengali, resident of village Kalibeda, Malkangiri were travelling carrying ganja contained in three bags and going towards Raipur for sale. Said secrete information EX.-P-1 was reduced to writing in Rojnamcha Sanha No. 1699. According to this witness, this formality was completed in presence of head constable Mer Singh Tekam and constable Anil Kumar (PW-1). Thereafter, the information was given to SDO (P) on the same day through constable Robin Lakara and the entry was also made to this effect in Rojnamcha Sanha Ex. P-4. Said police constable after making the delivery to the SDO (P) returned and entry to this effect was made in the Rojnamcha Sanha Ex. P-5. According to this witness, considering the urgency of the matter, without obtaining the warrant he prepared his staff for the raid and proceeded to the spot, collected weighing balance and weight and then waited for the said bus. After the bus reached there, names of the driver and conductor were recorded, they went to the person sitting on the second last seat and on being asked, the accused appellants disclosed their names and residential address to them. They were informed of their right to search and after obtaining consent and after giving their personal search, separate Panchnamas were prepared. From the possession of accused/appellants Niwas Das Bengali contraband contained in a green colour plastic bag was seized and after homonizing the same weighment was done and the contraband contained in three packets came out to be 6 Kg, 8.550 Kg. and 5.500 Kg. total 19.950 Kg. Thereafter, samples of 50 grams each were taken for being sent to Forensic Science Laboratory for chemical examination. and 5.500 Kg. total 19.950 Kg. Thereafter, samples of 50 grams each were taken for being sent to Forensic Science Laboratory for chemical examination. Likewise, on search being made, two packets of ganja contained in a plastic bag were found in the possession of accused Nimai Das Bengali and after homonizing the same weighment was done and the contraband contained in two packets came out to be 11Kg. Thereafter, samples of 50 grams each were taken for being sent to Forensic Science Laboratory for chemical examination. Similarly, on search being made, ganja contained in a plastic bag was found in the possession of accused Naresh Das Bengali and after homonizing the same weighment was done and the contraband in his possession came out to be 11.950 and 8.600 Kg. total 20.500 Kg. Thereafter, samples of 50 grams each were taken for being sent to Forensic Science Laboratory for chemical examination. Thereafter, according to this witness, accused/appellants were arrested for an offence u/s 20 (b) of the NDPS Act, seized contraband was deposited in Malkhana and FIR Ex. P-7 was registered. In cross-examination this witness has denied that he did not enter the bus and that the conductor had informed him that the accused/appellants had boarded the bus at Sukma and on being asked about the ticket, it was told to be misplaced. According to this witness, being unnecessary, the ticket book was not seized. He has further stated that the ganja was kept on the overhead wreck of the bus. Police constable- Anil Kumar Chandravanshi (PW-1) has stated that secrete information was received in police station that bus No. CG-07-F/1600 some persons were travelling with ganja and vide Ex. P-1 it was reduced to writing. Mohd. Hussain (PW-2) is the witness to weighment who has not supported the case of the prosecution and has been declared hostile. Satnam Singh (PW-4) driver of the bus has stated that on the date of incident his bus was stopped by the police and on search, 5.55 Kg, 8.45 Kg and 6.00 Kg. of ganja kept in a plastic bag was found in possession of accused Niwas Das vide Ex. P-14 and two samples of 50 grams each were taken. Likewise, from accused Nimai Das 9 Kg. and 11Kg. of ganja was seized vide Ex. of ganja kept in a plastic bag was found in possession of accused Niwas Das vide Ex. P-14 and two samples of 50 grams each were taken. Likewise, from accused Nimai Das 9 Kg. and 11Kg. of ganja was seized vide Ex. P-15 contained in two packets and two samples of 50 gram each were taken and in the same way 11.950 Kg. and 8.600 Kg. of ganja was seized from accused Naresh Das vide Ex. P-16 and two samples of 50 gram each were taken. Search memo of the bus Ex. P-18 was prepared before search of the accused/appellants. According to this witness, before taking search of the accused/appellants their .consent was obtained. He has admitted his signatures on Ex. P-19 to 21 and P-23 to P-36. In cross examination, this witness has admitted that in the said bus 2530 passengers were travelling and that the police had not obtained his signature on any document. Basant Gajpal (PW-5) is the witness who has proved relevant Malkhana entries. 9. Minute examination of the evidence makes it clear that on 14.8.2007 the accused/appellants were found in possession of Ganja which was seized vide Ex. P-14 to P-16. Though in the seizure memo Ex. P-14 to P-16 the exact place where the ganja was kept is not mentioned, from the other evidence like search memo of bus Ex. P-18 and statement of the investigating officer it is apparent that the contraband was seized from the possession of the accused/appellants. Further, from the seizure memo it is clear that in what manner the contraband was kept by the accused/appellants in plastic bags and the same was seized after completing all the formalities. Seizure memos Ex. P-14 to P16 have been duly signed by the accused/appellants without raising any objection. This Court does not find any force in the argument of the counsel for the accused/appellants that conscious possession has not been proved by the prosecution. In the case in hand secrete information Ex. P-1 was very specific where not only the bus number and names of the accused/appellants were mentioned but it was very specific to the effect that they were resident of Kalibeda, Malkangiri, they were sitting near the back seat carrying contraband in three bags and that based on this secrete information the accused/appellants were questioned and on disclosure of their names contraband was seized. Present is not a case where secrete information was not complete but a definite one acting upon which the accused/appellants were questioned and on their disclosure seizure of contraband was made. Taking entire evidence of the prosecution into consideration, it is established that the accused/appellants were in conscious possession of the seized contraband. Further, the investigating officer has not been put relevant questions with respect to the possession of articles, as required under the law. This Court does not find any force in the argument of the counsel for the appellants that there is total non compliance of section 42 of the Act because after receiving the secrete information same was reduced to writing vide Ex. P-1, it was forwarded to the superior officer and the police party proceeded to the spot. Further, there is no force in the argument of the counsel for the accused/appellants that as seized contraband was not produced in the Court at the time of trial, trial itself is vitiated. Non production of contraband alone would not vitiate the entire trial because the accused/appellants have failed to prove as to what prejudice has been caused to them by not doing so especially when after seizing the ganja samples were drawn, seal was duly affixed thereon and while sending the samples to FSL sample of seal was affixed and further that the appellants have failed to put any question to the Investigating Officer with respect to the same. Even otherwise present is not a case of total noncompliance of Section 42 of the Act because vide Ex. P-1 secrete information which was very specific mentioning even the exact location of the seat occupied by the accused/appellants, was reduced to writing vide Ex. P-4, it was forwarded to the superior officer by special messenger and Ex. P-5 is the compliance report. Record also shows that vide Ex. P-17 reader to SDO (P) has given the receipt confirming the fact that information sent was received in the office of SDO (P) on the same day. 10. Thus, in view of the discussion made above and law laid down by the Apex Court as mentioned above, this Court is of the opinion that the findings of the Court below convicting and sentencing the accused/appellants as mentioned hereinabove are strictly in accordance with the provisions of law and there is no infirmity in the same. 10. Thus, in view of the discussion made above and law laid down by the Apex Court as mentioned above, this Court is of the opinion that the findings of the Court below convicting and sentencing the accused/appellants as mentioned hereinabove are strictly in accordance with the provisions of law and there is no infirmity in the same. Accordingly, the appeal being without substance is liable to be dismissed. It is dismissed as such. Accused/appellants are already in jail and therefore there is no need to pass an order regarding their surrender etc. Appeal Dismissed.